This article reviews the origins and development of multidistrict
litigation before proceeding to examine its ability to take the place
of class actions for the resolution of complex litigation. After noting
that class actions are increasingly unavailable, particularly in
pharmaceutical products liability cases, the article explores the
management of the In re Vioxx Products Liability Litigation MDL. The
article concludes that the MDL model can allow for the efficient
resolution of complex litigation where a class action is not available,
but creative management by the MDL transferee court is crucial.
Highlighted are the use bellwether trials and the global settlement
across jurisdictional lines, crafted by counsel in both federal and
state courts and blessed and overseen in its execution by the MDL
court. Professional ethics issues regarding requiring opting-in
plaintiffs' attorneys to urge their clients to participate in the
global settlement and, if not, to withdraw, are discussed. The growing
use of multidistrict transfers of discreet litigation to a single court
in various states is examined. Finally, the article calls for Congress
to enhance the powers of MDL courts and to learn from the experience of
the states and district courts that have experimented, often on an ad
hoc basis, with the MDL model.

Tort law has always recognized the principle expressed by the Latin
maxim volenti non fit injuria, or "a person is not wronged by that to
which he or she consents." The absence of consent is part of the prima
facie case for tort liability, distinguishing tortious behavior from
socially acceptable behavior. Nevertheless, the value of consumer
choice in strict products liability is surprisingly unclear. Consider
the liability rules governing defects of product design or warning, the
most important categories of product defect. According to the
Restatement (Third) of Torts: Products Liability, "[t]he emphasis is on
creating incentives for manufacturers to achieve optimal levels of
safety in designing and marketing products." The optimal level of
safety has no apparent connection to the amount of safety that would be
chosen by consumers, because "consumer expectations do not play a
determinative role in determining defectiveness." Whether a product is
defective in these cases instead depends on "[a] broad range of
factors," including "the nature and strength of consumer expectations
regarding the product." In some cases, consumer expectations can be
"ultimately determinative" of the liability question, but it is not
apparent why the liability rules exclusively rely on consumer choice in
only these cases but not others. Consumer choice could also limit
liability under the assumed-risk rule, and yet assumption of risk is
not an independent defense in products liability, deepening the
impression that this body of tort law undervalues individual choice.

The impression is misleading. Strict products liability
appropriately values consumer choice. The value of consumer choice,
however, is obscured by the way in which the Restatement (Third) has
de-emphasized the importance of consumer expectations. Properly
understood, the value of consumer choice not only justifies the
liability rules in the Restatement (Third), it also provides the key to
understanding the important limitations of strict products liability,
including those based on assumed risks.